THE facts, which involve the construction of § 17 of the Act of June 18, 1910, c. 309, 36 Stat. 539, 557, in regard to the practice to be pursued in courts of the United States in a case where an interlocutory injunction is applied for to restrain the enforcement, operation or execution of a state statute by restraining the action of any officer of the State, are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
This is a proceeding in mandamus, in which relief is sought against a district judge, acting in a certain cause as a circuit judge for the district of Kansas, and also against the Circuit Court of the United States for the district of Kansas. To a rule to show cause a return has been filed and the Kaw Valley Drainage District of Wyandotte County, Kansas, has also, by leave, answered the rule. The matter is now for decision upon a motion to make the rule absolute.
Summarily stated, the facts bearing upon the issue to be decided are as follows:
By § 17 of the act of June 18, 1910, ch. 309, 36 Stat. 539, 557, creating the Commerce Court and amending the act to regulate commerce, provision was made as to the practice to be pursued in courts of the United States in cases where an interlocutory injunction is applied for to restrain the enforcement, operation or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute.
While proceedings, originally instituted in a state court of Kansas to condemn lands of the Water Company and others for the purpose of widening the Kansas River, were pending on appeal in the Circuit Court of Appeals for the Eighth Circuit, the legislature of Kansas, on January 28, 1911, enacted a statute which, in effect, authorized a summary appropriation of the lands affected by the pending condemnation suits, and directed the bringing by the Attorney General of the State of an action, after such appropriation had been consummated, against the owners of the lands appropriated "to determine the ownership of the property and to assess the value thereof and other damages for the taking of such portions of it as may belong to parties other than the public." By § 6 it was provided,
among other things, that upon a failure to satisfy the judgment rendered "the rights of the State to such land shall be divested and the possession thereof shall revert to the former adjudicated owners, in which event compensation shall be awarded for any loss or damage occasioned by the temporary appropriation, and that the court shall render judgment therefor. . . ." A few days after the passage of this statute the petitioner, a West Virginia corporation, commenced a suit in the Circuit Court of the United States for the district of Kansas against the Kaw Valley Drainage District of Wyandotte County, Kansas, and the individuals composing the board of directors of said drainage district, all averred to be citizens and residents of the district where the suit was brought. The bill prayed relief by injunction, temporary and permanent, restraining the defendants from a threatened taking possession of the lands of the petitioner under the act of January 28, 1911, upon the ground that the statute was repugnant to the Constitution of the United States. Thereafter, on February 8, 1911, District Judge McPherson, acting as circuit judge, issued a restraining order in the cause. The attention of the judge was called by the defendants to the provisions of § 17 of the act of Congress heretofore referred to, and request was made that two other judges, one of whom should be a circuit judge or a justice of the Supreme Court, should be called to assist in the hearing and determination of an application which was pending for a temporary injunction. It was, however, ruled that the provisions of such section merely deprived a single judge of the power to grant a temporary injunction, and that a court might be held by one judge for the purpose of decreeing the assailed statute to be constitutional and refusing to enjoin its enforcement. The court then heard argument, Judge McPherson alone sitting, upon the constitutionality of the Kansas statute. At the close of the hearing, counsel for the Water Company made the objection theretofore
urged by opposing counsel that the matter could only be disposed of by a court consisting of three judges, constituted as provided in the statute. Judge McPherson adhered, however, to his former ruling, and on March 6, 1911, a decree was entered vacating the temporary restraining order and denying a temporary injunction. This application for a writ of mandamus was then made.
The right to relief is based upon the contention that by virtue of the act of Congress a single judge was without jurisdiction to hear and determine the application for a temporary injunction. The prayer is that an order or rule be issued commanding the annulment and setting aside of the order of March 6, 1911, vacating the restraining order and denying the application for an injunction, and directing that the application for a temporary injunction be heard anew before a court consisting of three judges, in conformity to the act of Congress.
The question for decision is whether, pursuant to the act of Congress referred to, the Circuit Court composed only of one judge had power to hear and determine the application for a temporary injunction in the cause pending in the Circuit Court of Kansas. The legislation to be considered is § 17 of the Act of June 18, 1910, ch. 309, 36 Stat. 539, 557, reading as follows:
"That no interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute shall be issued or granted by any justice of the Supreme Court, or by any Circuit Court of the United States, or by any judge thereof, or by any district judge acting as circuit judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the ...